The EU Succession Regulation Explained: Why Choosing the Law of Your Nationality Matters
EU Regulation 650/2012 — the European Succession Regulation, often shortened to Brussels IV — transformed the way cross-border inheritances are handled in the European Union. Before it came into force in August 2015, an estate with assets in several countries could be governed by several different succession laws simultaneously, each chosen by a different connecting factor (nationality, habitual residence, location of property). The regulation replaced that fragmented system with a single rule: the entire estate is governed by the law of the deceased’s habitual residence at death — unless the deceased made an express choice in their will of the law of their nationality. The choice clause is the most important practical tool the regulation gives international families, and it is the clause most often missed by foreign nationals living in Spain who never made a Spanish will. This article explains how the regulation works, why a UK national resident in Spain can still benefit from it after Brexit, when Spanish forced-heir rules apply by default, and the dramatic differences in outcome between an estate governed by Spanish law and one governed by English, German or American law. A dedicated inheritance lawyer in Spain can draft the choice clause that prevents the regime change that Brexit and changing residence patterns have triggered for thousands of international families.
What the regulation changed in August 2015
Before August 2015, an international inheritance in Europe was a patchwork. Spain applied the law of the deceased’s nationality to movable assets, while France applied the law of habitual residence to movables and the law of the location of the property to immovables. Germany applied yet another formula. The result was that a French national who died in Spain owning property in Italy could have his estate governed by three different laws at once, with all the conflicts of forced-heir rules, executor powers and survivorship rights that this implied.
Regulation 650/2012 simplified the picture for all the EU member states bound by it (every EU country except Ireland and Denmark). The new default is that the law of the deceased’s habitual residence at death governs the entire estate, wherever the assets are situated and whatever the nationality of the heirs. A single law applies; a single court has jurisdiction; a single European Certificate of Succession can be issued, recognised in every bound member state. The simplification was enormous and is now the framework within which every international inheritance file in Spain is built.
The choice of law: the most useful clause in the regulation
Article 22 of the regulation allows any person to choose, in their will, the law of any state of which they are a national at the time of the choice or at the time of death. The choice must be express — it cannot be inferred from circumstances — and it must be made in a valid testamentary disposition. Once made, the chosen law governs the whole estate. A British national resident in Spain who makes a Spanish will choosing English law has his Spanish estate governed by English law, not by Spanish forced-heir rules. A German national resident in Marbella who makes the same choice has her estate governed by German law. The mechanics of the choice clause and the standard wording we recommend are explained in our guide to Spanish will options for foreign nationals.
Why the choice matters: Spanish forced-heir rules (legítima) reserve two-thirds of the estate for the descendants. A foreign parent who wants to leave the estate to a new spouse, to one favoured child, or to a charity will find this objective frustrated unless they expressly choose the law of their nationality. The choice clause is therefore not a piece of paperwork to be left to chance — it is the central legal device that protects the testator’s wishes.
Habitual residence as the default connecting factor
When no choice is made, the regulation applies the law of the deceased’s habitual residence at death. Habitual residence is a factual concept — where the deceased actually lived in the period immediately before death — and is independent of formal residence registration, of nationality, and of the location of property. A German pensioner who has lived in Andalusia for the last fifteen years is habitually resident in Spain even if she retains German nationality and a German bank account. Her estate, in the absence of a choice clause, is governed by Spanish law.
The factual nature of habitual residence makes it sometimes contested. A British national who spends half the year in Spain and half in the UK, who maintains property in both countries, who has family and friends in both, may be plausibly characterised as habitually resident in either. The factors examined include the duration and regularity of presence in each country, the location of personal and family ties, the location of professional activity, and the centre of the deceased’s personal life. Recital 23 of the regulation lists the relevant criteria. Where habitual residence is genuinely unclear, the regulation provides a tie-breaker: the closest connection with another state, taken into account the deceased’s nationality and the location of the main assets.
The UK and Brexit: a special case
The United Kingdom never opted into Regulation 650/2012, so the regulation has never applied as such in the UK. After Brexit, the UK is even more clearly outside the regulation. But — and this is the crucial point — the regulation continues to apply in Spain, and Spain’s application of the regulation does not require reciprocity. A British national resident in Spain can still make a Spanish will choosing English law; Spain will apply English law to the Spanish estate; English law (which in the absence of forced-heir rules respects testamentary freedom) will produce a result close to what the British testator likely intended.
What changed with Brexit is the recognition of British public documents in Spain. Pre-Brexit, certain UK-issued succession documents had streamlined recognition under EU rules. Post-Brexit, those streamlined routes are gone and the heirs must use the apostille and sworn translation procedure for every UK document presented in Spain. The substantive succession-law analysis is unchanged: the choice clause works the same. The procedural friction is greater. The full Brexit picture is set out in our guide on making a Spanish will after Brexit.
When Spanish forced-heir rules apply by default
In the absence of an express choice of law, the regulation refers the entire estate to the law of habitual residence. For a foreign national habitually resident in Spain at death, that is Spanish law, and Spanish forced-heir rules apply. The descendants take two thirds (one third strict legítima, divided equally among the children; one third mejora, which can favour one child); the surviving spouse takes a usufruct over part of the estate; the remaining third is freely disposable. The result is often a long way from what the testator would have intended.
In practice this means that an English will made in England, leaving everything to a new spouse, may not be effective for the Spanish portion of the estate if the testator was habitually resident in Spain. The English will is recognised in Spain as a valid testamentary disposition, but its content is overridden to the extent that it conflicts with Spanish forced-heir rules. The disinherited children can bring a reduction action to recover their legítima. The new spouse, expecting to inherit the estate, finds her position substantially weakened.
The form of the will: how to make a valid choice in Spain
A Spanish will (testamento abierto) is signed before a Spanish notary and registered immediately with the Registro Central de Últimas Voluntades in Madrid. It is the easiest, fastest and most secure form for a person resident or holding assets in Spain. The notary verifies the testator’s capacity, drafts the document in Spanish, and ensures that the choice-of-law clause is correctly expressed. The cost is typically €40 to €100. The will is automatically retrievable after death by any Spanish notary processing an inheritance.
An alternative is a holographic will (testamento ológrafo), entirely handwritten, dated and signed by the testator. Holographic wills are valid in Spain but must be probated through a notarial procedure after death, which adds time and cost. For an international family the Spanish notarial will is strongly preferred. Several testamentary forms can coexist — a Spanish will dealing with Spanish assets and an English will dealing with English assets, for example — but care must be taken that they do not unintentionally revoke each other. The drafting of coordinated cross-border wills is part of our standard will-planning service for foreign nationals.
The European Certificate of Succession
The regulation introduced a new instrument, the European Certificate of Succession (Certificado Sucesorio Europeo, CSE), which establishes the heirs’ status, share and powers in every bound EU member state. The certificate is issued by the notary or court of the member state with jurisdiction (normally the state of habitual residence) and is automatically recognised by registries, banks and authorities throughout the other bound states without further legalisation. For an heir resident in Germany inheriting Spanish property from a German parent who lived in Munich, the CSE issued in Germany is enough to register the Spanish property at the Spanish Land Registry.
The CSE does not replace the notarial deed of acceptance in Spain — that is still required for Spanish-situs assets — but it simplifies the proof of who the heirs are and what their shares are. For international families operating across two or three EU member states, the CSE is a powerful coordination tool and should be used whenever it is available. It is not available for UK estates (the UK is outside the regulation) and has no equivalent in US-Spain succession.
Practical examples of how the choice clause works
Example one: a 62-year-old German national has lived in Marbella for ten years. She has two children from her first marriage and is now remarried. She wants to leave the entire estate to her current husband. Without a choice clause, Spanish forced-heir rules apply: the children take two thirds of her estate as legítima, the husband takes a usufruct, and only one third is freely disposable. With a choice clause for German law, her estate is governed by German law. German law has a more flexible system of forced shares (Pflichtteil) that allows substantial freedom of disposition to the spouse, particularly under the equalisation regime (Zugewinngemeinschaft). The husband’s position is much stronger.
Example two: a 75-year-old British national has lived in the Balearics for twenty years. He has three adult children in the UK. He wants to leave his Spanish property equally to the three children and his Spanish bank account to a local Spanish charity. Without a choice clause, Spanish forced-heir rules apply: the children take two thirds of the estate as legítima, and the freely disposable third may not be enough to fund the intended charitable gift in full. With a choice clause for English law, the entire estate is freely disposable. The will is given full effect. Both examples are common and both are entirely preventable. See our country guide on German nationals inheriting in Spain for more detail on the German-Spanish interface.
Limits and exclusions: what the regulation does not cover
The regulation governs succession in the civil-law sense — who inherits, in what shares, on what conditions. It does not govern matrimonial property regimes (which are dealt with by a separate regulation, 2016/1103), it does not govern gift tax or inheritance tax (each member state continues to apply its own tax rules), and it does not override property-registry rules of the country where the property is located. For Spain this means that the Spanish notarial deed of acceptance and the Spanish Land Registry continue to apply regardless of which law governs the substantive succession.
The regulation also does not apply to certain types of asset that have specific cross-border rules — trusts, certain pension rights, life-insurance proceeds payable to a named beneficiary, and assets held in joint accounts with right of survivorship. Each of these may be governed by rules outside the regulation, and the planning for an international family should consider them separately rather than assuming that the choice clause solves every problem.
Action steps for foreign nationals living in Spain
Three actions cover ninety per cent of cases. First, make a Spanish will with an express choice of the law of your nationality. Second, coordinate it with any existing will in your home country so that the two do not unintentionally revoke each other. Third, review the will every five to ten years to ensure that changes in residence, in nationality (including post-Brexit consequences for British nationals) and in family circumstances are reflected. The first two actions can usually be completed in a single one-hour notarial appointment in Spain. The cost is modest and the protection is dramatic. To start, contact our team with a brief summary of your family situation, your nationality, your Spanish assets and your current will arrangements.
For families that have not made a Spanish will and have already lost a parent, the choice clause is no longer available — but other strategies remain. Forced-heir claims can be settled by agreement among the heirs, and the partition deed can be structured to achieve the testator’s likely intent within the constraints of Spanish law. The earlier the lawyer is involved, the more options remain on the table.